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Is there a new Immigration Waiver?

Is there a new Waiver for immigration purposes?

On January 6, 2012, the United States Citizenship and Immigration Services (USCIS) issued a “notice of intent to issue a rule” regarding a rule change for Immediate Relative Immigrant Visa applications.  This is not a new Waiver but instead a change in the way a current Waiver is processed.   

Under the current process, an alien who must obtain permanent residence through consular visa processing outside the United States must appear for an interview with the Department of State consular office in their home country.  This includes individuals who have entered the United States without inspection who have a basis to stay permanently in the United States (such as marriage to a United States citizen or being a parent of a United States citizen child who turns 21).  In order to obtain their immigrant visa the individual must leave the United States to finish processing through the consulate in their home country. 

Of course leaving the United States to attend the interview at the consulate usually triggers a 3 or 10 year bar against returning to the United States.  If the consular officer determines the alien is subject to the 3 or 10 year bar, the consular officer advises the alien he or she is eligible to apply for a Waiver.  That Waiver may waive the 3 and 10 year bar against the individual.  Currently, an individual cannot apply for the Waiver until a consular officer has made the 3 or 10 year bar inadmissibility determination.  Once the Waiver application is filed it can take up to a year for it to be approved.  This whole time the individual who applied for the Waiver must remain outside the United States and await a decision.  This separates families and puts undue burden and stress upon them.

If the new process is approved the Waiver for the 3 and 10 year bar can be filed in the United States.  Once it is approved, the individual can go to their interview at the consulate in their home country.  Since the waiver determination has already been made, the consular office could issue the immigrant visa at the time of the visa interview, providing there are no other grounds of inadmissibility.  This would keep families together and not force them to be separated for many months. 

The purpose of this change is to reduce the time U.S. families remain separated while their relative proceeds through the immigrant visa process while also reducing costs and achieving a more efficient visa process.

However, this new process will be limited to:

(1)  Aliens who are immediate relatives of U.S. citizens (Petition filed by U.S. citizen who is immediate relative);

(2)  Whose only ground of inadmissibility is the 3 or 10 year unlawful presence bar;

(3)  Who must depart from the United States to obtain immigrant visas;

(4)  Whose U.S. citizen spouse or parent would suffer extreme hardship if the applicant were denied admission to the United States; AND

(5)  Must establish that he/she merits a favorable exercise of discretion.

Note: (4) does not have to be same citizen who filed petition in (1)

Aliens not eligible for this provisional waiver include:

(1)  Aliens whose waiver eligibility would be based on extreme hardship to a lawful permanent resident alien relative;

(2)  Aliens subject to other grounds of inadmissibility;

(3)  Aliens with waiver applications currently pending.


Contact Scales of Justice, LLP to discuss this issue or any other immigration issues you may have. 


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